IN THE CASE OF:	  

		BOARD DATE:	  13 August 2008

		DOCKET NUMBER:  AR20080006605 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the Army Commendation Medal (ARCOM) he was awarded for his Iraq service be upgraded to a Bronze Star Medal (BSM).   

2.  The applicant states, in effect, the downgrade of the BSM he was recommended for was unjust.   

3.  The applicant provides an award narrative, award recommendation (DA Form 638 and Narrative), affidavit, and Congressional correspondence in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he entered the United States Army Reserve (USAR) on 11 April 1981.  

3.  On 24 February 2003, while serving as a member of the USAR, the applicant was ordered to active duty in support of Operation Enduring Freedom, and he served in Iraq from May through December 2003.  

4.  The applicant's Official Military Personnel File (OMPF) contains a recommendation for award (DA Form 638), dated 26 September 2003, which was submitted by the applicant's unit commander, a captain, and recommended the applicant receive the BSM, for meritorious service from 24 February through 
1 December 2003.  A narrative statement of the applicant's achievements was submitted with the award recommendation.  On 19 January 2004, the award approval authority, a brigadier general, downgraded the award to an ARCOM, which was awarded by 377th Theater Support Command Orders 019-01, dated 22 January 2004.  

5.  On 10 January 2004, the applicant was honorably released from active duty at the completion of his required service and returned to his USAR unit.  The DD Form 214 he was issued shows he completed 10 months and 17 days of active military service during the period.  

6.  On 4 September 2004, a Member of Congress submitted a request to the United States Army Human Resources Command (HRC) that consideration be given to award the applicant the BSM.  HRC advised the Member of Congress that a request for reconsideration for possible upgrade of a previously downgraded recommendation may be reconsidered only if new substantive and material information is furnished; however, in the applicant's case, the Army Decorations Board would require additional justification from the applicant in order to reconsider the award.  The Member of Congress was advised that if the applicant submitted the additional documentation required, the request with supporting documentation would be submitted to the Army Decorations Board.  There is no evidence indicating the applicant resubmitted his request to HRC with the required documentation for reconsideration by the Army Decorations Board.   

7.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 1-16 contains guidance on reconsideration of disapproved or downgraded award recommendations.  It states, in pertinent part, that a request for reconsideration or the appeal of a disapproved or downgraded award recommendation must be placed in official channels within 1 year from the date of the awarding authority's decision.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the downgrade of his award for Iraq service from a BSM to an ARCOM was unjust and that he should be awarded the BSM was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the DA Form 638 submitted on the applicant recommending he be awarded the BSM for meritorious service for the period 
24 February through 1 December 2003, was ultimately reviewed and acted upon by the award approval authority, who acting within his discretionary authority downgraded the award to an ARCOM, which after his review of the recommendation and narrative, he clearly believed was the appropriate award to recognize the applicant's meritorious service.  As a result, it appears the applicant's awards recommendation was properly processed in accordance with the applicable regulation.

3.  Absent any evidence of error or injustice in the processing of the award in question, there is an insufficient evidentiary basis to support an upgrade.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ________x______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080006605



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ABCMR Record of Proceedings (cont)                                         AR20080006605



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